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Opinion: Judge strikes blow against forum shopping


Carolina Journal

Among multiple ongoing lawsuits challenging North Carolina’s election laws, one has generated few headlines in recent months. But a recent development in the federal case deserves attention.

The judge who had been overseeing the case, North Carolina Alliance for Retired Americans v. Hirsch, issued an order offering significant comments about “forum shopping.”

The lawsuit targets North Carolina’s decades-old requirement that voters live in the state for at least 30 days before casting a ballot here. The retirees group, working with lawyers from high-profile Democratic operative Marc Elias’ law firm, challenge that residency requirement. They label it unconstitutional.

US District Judge William Osteen issued a May 16 order transferring the case from his court in North Carolina’s Middle District to the Eastern District. The Eastern District covers 44 counties, including Wake. The Middle District covers 24 counties, including all of Wake’s western neighbors.

Since Raleigh is part of Wake County, one might expect that critics challenging a law written in the state capital would file a federal suit in the Eastern District. Yet it’s been more common in recent years for those cases to end up in the Middle District.

Court experts tell me plaintiffs targeting the actions of Republican state legislative leaders tend to engage in “forum shopping” at the Middle District. They expect better odds for a favorable ruling in that venue.

Two Middle District judges owe their appointments to Democratic presidents, while the Eastern District has no Democrat-appointed judges actively hearing cases.

Republican President George W. Bush appointed Osteen to his post in 2007.

As Elias and the retirees pursued their case, GOP legislative leaders challenged plaintiffs’ choice of the Middle District as the judicial battleground. Lawmakers filed a motion last December to dismiss the case or to have it transferred east.

Legislative lawyers reminded the court that the residency requirement stems from decisions made in Raleigh “half a century ago.” “Despite its claims to the contrary, the Alliance has not unearthed violations of the [Voting Rights Act] and the Constitution that have hidden in plain sight for fifty years.”

“Acting like a roving private attorney general, the Alliance waited to sue in an improper venue after its own claims became barred by laches,” a legal term referring to a court’s ability to reject complaints when plaintiffs wait too long to file suit.

The alliance responded in February with a proposal to consolidate an injunction hearing with a trial that would resolve the dispute over the 30-day residency rule. The plan called for the hearing and trial at some point after the March 5 primary. Legislative leaders objected.

Osteen waited until May to respond to the competing requests. He explained his decision to shift the case out of the Middle District.

“Here, Intervenor Defendants argue venue is improper in the Middle District of North Carolina and ask this court to either dismiss the Complaint or transfer the case to the Eastern District of North Carolina … because all Defendants reside in the Eastern District of North Carolina and Defendants have performed every alleged event or omission giving rise to Plaintiff’s purported claims in the Eastern District of North Carolina,” Osteen wrote.

“Plaintiff does not dispute that all Defendants reside in the Eastern District, and thus venue would be proper there,” Osteen added. “However, Plaintiff states venue is also proper in the Middle District ‘because the “events or omissions giving rise to” the Alliance’s claims include the enforcement across the entire State of the 30-Day Residency Requirements. A substantial part of those events occur in this judicial district, where millions of North Carolinians live and vote, including thousands of the Alliance’s members.’”

“Plaintiff has failed to identify any ‘acts or omissions’ occurring in the Middle District of North Carolina other than the fact that an allegedly unconstitutional law would be enforced statewide,” the judge wrote.

“If this court were to adopt Plaintiff’s venue arguments, it would mean anytime a plaintiff organization challenges a state law, venue would be proper in any district in that state where the organization had members potentially affected by the challenged statute — regardless of the specific acts of the parties. This court declines to read [federal venue law] so broadly and concludes that venue is improper in the Middle District of North Carolina,” Osteen wrote.

Elias and the retirees are free to push their case in the Eastern District, Osteen explained.

As an order from a single federal District Court judge, Osteen’s ruling sets no binding precedent. Yet he offered a reasonable standard to determine the proper venue for federal lawsuits challenging the constitutionality of North Carolina’s state laws.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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